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deputyship and the court of protection
Should a family member become mentally incapacitated, and not have a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) in place, it will be up to the Court of Protection to deal with their affairs. Their assets will be frozen until an application for ‘Deputyship’ is made to the Court of Protection – which allows either a relative, friend or court appointed professional Deputy to take over the running of their affairs.
Deputyship applications can be costly, confusing and upsetting – but we are experienced in this area, and can provide you with guidance and advice throughout. This includes the application process, being appointed and managing the person’s affairs. If a suitable Deputy is not available, then a professional can also take on this role – and we have specialist solicitors who can be appointed to act as a Deputy instead. We can also make other applications to the Court of Protection if required – for example to make a statutory Will or to approve a gift.
So, what is Deputyship Order?
If you don’t have a Lasting Power of Attorney (or old style Enduring Power of Attorney) and you can no longer make decisions for yourself through loss of mental capacity for whatever reason, the Court of Protection will need to appoint a person to act on your behalf. That person is known as a Deputy. The appointment of a Deputy is made in a Court Order.
There are two types of Deputyship Order the Court can make:-
- A Property and financial affairs order – to manage your property and finances
- A personal and welfare order – to make decisions about your care, personal welfare and medical treatment
Who can act as a Deputy?
Anyone aged 18 or over can apply to become a Deputy such as a relative, family friend or a professional such as a solicitor. The court may decide to appoint two or more Deputies on your behalf.
How to become a Court appointed Deputy?
The process of being appointed as a Deputy involves an application to the Court of Protection. The application requires the applicant (the person wanting to become a Deputy) to provide detailed personal and financial information about the person who has lost capacity. The Court require a doctor to complete a medical assessment of capacity form and the applicant will need to sign a declaration which outlines the proposed Deputy’s circumstances, duties and responsibilities. The application is involved and time consuming. Once the application has been submitted to the Court for consideration there can be significant time delay before the applicant receives the Order – often months.
Once an Order in principle is made, the Deputy has to buy an insurance bond known as a surety bond to protect the assets of the person who has lost capacity.
A Professional Deputy
When acting as a Deputy you have a duty to:
- Act in the person’s best interest
- Act with due care and skill
- Not take advantage of the situation
- Not delegate duties to someone else
- Act in good faith
- Respect the person’s confidentiality
- Keep accounts
- Keep money separate from their own
- Act within the remit of the Order
(this is not an exhaustive list but an idea of the type of duties)
On a practical level the Deputy will need to:
- Open a Deputy bank account
- Ensure that the person is receiving all appropriate benefits, exemptions and allowances
- Complete a tax return
- Submit an annual report to the Court of Protection
- Notify all financial institutions that a Deputyship Order has been made
- Notify the Land Registry that a Deputyship Order has been made
- Apply for care funding such as NHS Continuing Healthcare Funding
How we can help
Geoffrey Leaver Solicitors has a great deal of expertise in Court of Protection matters. We can:
- Advise you about the application process
- Make the application on your behalf
- Give support and advice to Deputies in carrying out their duties
- Advise Deputies where disputes have arisen or where the Deputy is subject to a Court of Protection investigation
What are the costs?
The costs of the application are paid for from the incapacitated person’s own funds. However, certain fees have to be paid up front such as the medical report and the application fee (currently £380). The person wanting to be appointed as Deputy pays these initially but is refunded once the Order is made. Legal costs of an amount not exceeding £950 plus vat. If the costs exceed this amount the court will either order that a detailed assessment of costs takes place or may order that the Deputy is to agree the costs with the solicitor.
Download your free Deputyship factsheet
What our client’s say:
“Dagmara took all the stress and strain of sorting wills and probate at what was a difficult time. We couldn’t have done it without her. Excellent”. Clare Dragisic
To see more client testimonials please click here
We were instructed to help resolve issues surrounding a will. The Client’s sister had asked her solicitor to make changes to her will but was injured in a road accident before she was able to sign the new document. We made a successful application to the Court of Protection for a Statutory Will incorporating provisions for the sister’s son. The client’s sister died shortly after the order for the Statutory Will was made and the firm have since obtained a Grant of Probate in her estate. The family were extremely relieved that her sons have now been sufficiently provided for from the estate.
The Private Client Services Team
Dagmara Kulczykowska Partner
Private Client Services 01908 689341Dagmara is Head of the Department and has many years of experience in all aspects of private client work. Dagmara’s strengths are working with families on very sensitive and emotive matters, providing them with specialist legal advice. She ensures clients are supported but also advised clearly and comprehensively on the legal issue(s) at hand so that they can make an informed decision.